AVINASH KUMAR SETIA,NEW DELHI vs. DCIT, NEW DELHI

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ITA 1814/DEL/2015Status: DisposedITAT Delhi17 September 2019AY 2009-104 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal held that the penalty proceedings were not sustainable because the notice issued by the AO was vague and ambiguous, failing to specify whether the penalty was for concealment of income or furnishing inaccurate particulars. The AO also failed to record a clear satisfaction on this aspect.

What were the facts?

The assessee was assessed with an addition of Rs. 1.25 crores on account of undisclosed income, leading to a penalty of Rs. 41,41,114/- under Section 271(1)(c). The penalty was confirmed by the CIT(A).

What were the issues?

Whether penalty under Section 271(1)(c) is sustainable when the notice issued is vague and does not specify the limb of the default, and whether the AO recorded proper satisfaction for initiating penalty proceedings.

Which sections of the Income-tax Act were involved?

Section 271(1)(c),Section 274

AI-generated summary — verify with the full judgment below

Cases cited in this judgment(4)Show list

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Income Tax Appellate Tribunal, DELHI BENCH “F”: NEW DELHI

Before: SHRI AMIT SHUKLA & SHRI PRASHANT MAHARISHI

For Appellant: Shri Kapil Goel, Adv
For Respondent: Shri Surender Pal, Sr. DR
Hearing: 22/07/2019Pronounced: 17/09/2019

O R D E R PER PRASHANT MAHARISHI, A. M. 1. This appeal is filed by the assessee against the order of the ld CIT(A)-XXVI, New Delhi [ The ld CIT (A)] dated 02.01.2015 for the Assessment Year 2009- 10, wherein, the penalty levied of Rs. 41,41,114/- u/s 271(1)(c) of The Income tax Act [ the Act] by the ld ACIT, New Delhi [ the ld AO] as per order dated 29.03.2014 was confirmation of the penalty. 2. The assessee has raised the following grounds of appeal:- “1. The learned CIT(A) erred in facts and in law confirming the penalty of Rs. 41,41,114/- which is not only bad in law but also against the facts and circumstances of the case.”

3. The brief facts of the case shows that the assessee is an individual who was assessed u/s 143(3) read with section 147 of the Act of Rs. 12942910/- wherein, an addition of Rs. 1.25 crores was made on account of undisclosed income. Consequently, the assessment was passed at Rs. 12943910/-. While making the addition the ld AO initiated the penalty proceedings in the assessment order stating that since the assessee has concealed the particulars of income and also submitted inaccurate particulars of income penalty u/s 271(1)(c) of the Act was initiated. Consequently, the addition of the above sum challenged by the assessee before the various forums was Page | 1 ultimately confirmed by the Hon'ble Delhi High Court in 395 ITR 235. Thus, the penalty order u/s 271(1)(c) of the Act was passed by the ld AO on 29.03.2014 levying penalty of Rs. 4141114/-. The above order was challenged before the ld CIT (A) who confirmed the levy of the penalty vide order dated 02.01.2015 which is challenged before us.

4. The ld Authorized Representative coming to the ground of the appeal submitted that at the time of making the assessment the ld AO has noted the satisfaction that „assessee has concealed the particulars of income and also submitted inaccurate particulars of income‟. At the time of levy of the penalty the order u/s 271(1)(c) clearly show that the „assessee has furnished inaccurate particulars of income‟ in the first para of the penalty order and in the 3rd para of penalty order it is stated that the „assessee has concealed the particulars of income‟. He further referred to the 4th para of the order stating that penalty was levied for „furnishing inaccurate particulars of income‟. He further referred to the notice of the penalty issued u/s 274 of the act dated 17/2/2014 where in none of the tow charges are struck off. He, therefore, submitted that there are inconsistent charges raised by the ld AO and no proper satisfaction with respect to the charges twin limbs of the default has been noted. He referred to several judicial precedents in this regard. For the sake of brevity all these judicial precedents are not mentioned.

5. Learned departmental representative vehemently supported the orders of the lower authorities and submitted that the addition has been confirmed by the honourable Delhi High Court in the present case and therefore the assessee has concealed the income. He further referred to the decision of the honourable Delhi High Court in case of Raj Hans Towers private limited vs Commissioner of income tax in 373 ITR 9 (Delhi) to support the case of the revenue.

6.

Assessee has also raised an additional ground of appeal precisely challenging the initiation of the penalty proceedings with respect to the specific charge. However, looking to the facts of the case, we do not adjudicate on admission of the additional ground but proceed to decide the issue on the merits of the case as per the facts available before us.

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